Excerpt: ...dino, Case No. CIV-DS-19-09557. McCorkle v. Ralphs Grocery Company, Superior Court of the State of California, County of San Diego, Case No. 37-2019-00017091. The petition to add on cases to the JCCP concerns three additional cases, each of which is also brought on behalf of the LWDA under PAGA seeking penalties for Labor Code violations. Regarding the proposed add-on cases under CRC 3.544, the court ORDERS: The petition to add-on Armstrong and R...

Excerpt: ...nd that the court lacks jurisdiction because Plaintiff has failed to timely comply with the Government Claims Act. First, Defendant argues that Plaintiff has not alleged compliance, exhaustion of remedies under the grievance process set forth in the collective bargaining agreements between OUSD and the two applicable unions, United Administrators of Oakland Schools ("UAOS") and the Oakland School Employees Association/Service Employees Internatio...

Excerpt: ...cer-causing substance. However, Plaintiff's Moving papers contain no evidence regarding what testing was conducted on Defendant's at-issue cookies or what levels of acrylamide were discovered by the testing of said cookies. Nevertheless, the proposed settlement of Plaintiff's sole cause of action for violation of Prop. 65 provides in relevant part that Defendant pay a civil penalty of $12,000 and also to pay $108,000 to Plaintiff's counsel in lie...

Excerpt: ...tions or tactics that are frivolous or solely intended to cause unnecessary delay." (CCP §128.5.) "Frivolous" means "totally and completely without merit or for the sole purpose of harassing an opposing party." (CCP §128.5(b)(2).) At this point in the litigation, the court cannot Pursuant to §128.5, defendant requests attorney's fees incurred by Plaintiff's counsel for bringing the present motion, which defendant argues was brought in bad fait...

Excerpt: ...nt to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage." (Golden Eagle Land Investment, L.P. v. Rancho Santa Fe Association (2018) 19 Cal. App. 5th 399, 428.) Each of these elements, including causation and damages, must be pleaded with particularity. (Ibid.) To survive demurrer, plaintiff must plead facts that "show how, when, where, to whom, and by what means the representations were tendered." (Hamilton v. ...

Excerpt: ...o as the proxy or agent of the state's labor law enforcement agencies." (Iskanian v. CLS Transp. Los Angeles, LLC (2014) 59 Cal.4th 348, 381.) (See also ZB, N.A. v. Superior Court of San Diego County (2019) 2019 WL 4309684 at *4; Tanguilig v. Bloomingdale's, Inc. (2016) 5 Cal.App.5th 665, 671.) A person asserting a claim on behalf of the LWDA under PAGA must obtain court approval for any settlement. Labor Code 2699(l)(2) states: "The superior cou...

Excerpt: ...6 (33%), costs of up to $3,000, a service award of $5,000 for the class representative, a net PAGA payment of $750, and settlement administration costs of up to $2,500. After these expenses of approximately $28,000, the class would get $22,000. The average payout per class members would be $850. The proposed class notice form and procedure are adequate. The proposed class is appropriate for class certification. The motion makes an adequate analys...

Excerpt: ...eviously certified the class. (Order of 10/6/19.) The case preliminarily settled for monetary relief of a total of approximately $700,000. The settlement agreement states there will be attorneys' fees and cost of up to $210,000 (30%) and a service award of $10,000 for each class representative. The case preliminarily settled for non-monetary relief of agreement to cooperate in the discovery for the claims against Midland. The proposed class notic...

Excerpt: ... The settlement agreement states there will be attorneys' fees and cost of up to $116,666.67 (33 1/3%), costs of up to $25,000, a service award of $10,000 for the class representative, and settlement administration costs of up to $5,000, and a net PAGA payment of $7,500. After these expenses of approximately $164,166, the class would get $185,834. The average payout per class members would be $1,858. The proposed class notice form and procedure a...

Excerpt: [email protected], and (2) all opposing counsel or self-represented parties, that the party is contesting this tentative ruling. The clerk shall provide the hearing date and time, and call information. If a hearing is requested, the hearing will be conducted on Wednesday, May 5, 2021 at 1:30 p.m. or at a subsequent date and time set by the Clerk of Dept. 514. The subject line of the email to the Court contesting the tentative ruling must lis...

Excerpt: ...t of business. This is a significant factor in the settlement. The case preliminarily settled for a total of $300,000. The settlement agreement states there will be attorneys' fees and cost of up to $120,000 (40%), costs of up to $4,490, a service award of $10,000 for the class representative, a net PAGA payment of $2,250, and settlement administration costs of up to $22,800. After these expenses of approximately $140,000, the class would get $14...

Excerpt: ...ion within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages . . . , or that one or more defendants either owed or did not owe a duty to the plainti...

Excerpt: ...asserts only the First Cause of Action for Harassment against Defendant Scott Page. The allegations and claims in the Complaint determine the scope of relevant issues before the Court. See Johnson v. Raytheon Co., Inc. (2019) 33 Cal.App.5th 617, 636; and Hutton v. Fidelity Nat'l Title Co. (2013) 213 Cal.App.4th 486, 493. Plaintiff, who is African American, was hired by National University on February 11, 2015. National University System ("NUS") i...

Excerpt: ...e seeking relief; the moving papers currently filed do not satisfy the clear and convincing evidentiary standard required under CCP §§36(d) or (e). STANDARD OF LAW CCP § 36 provides in relevant part: "(d) In its discretion, the court may also grant a motion for preference that is accompanied by clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial medical doub...

Excerpt: ...r production of documents. The Court has reviewed the requests for production attached as Exhibit A to the Declaration of Audrey Smith. The Court has been advised that the scope of requests nos. 1 and 2 were limited after a discussion between the attorneys. Although Ms. McKewon, through her attorney Jonathan C. Teller, objected to the scheduling of the deposition on March 26, 2021, she did not object to the requests for production. Ms. McKewon ap...

Excerpt: ...anuary 25, 2021, Plaintiffs served a notice of deposition with a request for production of documents for the deposition of Carquest's person-most-qualified ("PMQ") and custodian of records ("COR") to commence on February 4, 2021. Carquest served objections on February 1, 2021. The parties dispute whether a dissolved corporation must provide a witness to sit for deposition in defending lawsuits. Carquest objected in part because it is a dissolved ...

Excerpt: ...ter counsel met and conferred on March 19, 2021 regarding the responses served on March 15, 2021, Plaintiff produced additional documents that counsel believed were responsive to request no. 1, but it did not amend the original deficient response. Plaintiff's response is inherently ambiguous because it asserts several objections, which have some merit, but then states that it will produce all documents responsive to the request. The Court does no...

Excerpt: ...parties, that the party is contesting this tentative ruling. The clerk shall provide the hearing date and time, and call information. If a hearing is requested, the hearing will be conducted on Wednesday, May 5, 2021 at 1:30 p.m. or at a subsequent date and time set by the Clerk of Dept. 514. The subject line of the email to the Court contesting the tentative ruling must list the case name and number, and the email must identify the reason for th...

Excerpt: ...ial setting. "Notwithstanding any other provision of law, the court may in its discretion grant a motion for preference that is supported by a showing that satisfies the court that the interests of justice will be served by granting this preference." (CCP § 36(e).) Plaintiffs ask that the current August 16, 2021 trial date be designated as a preferential trial date. Mr. Malnar is 64 years old, and was diagnosed with Stage IV lung cancer in April...

Excerpt: ...judgment. On 7/18/16 the court granted summary judgment against Edward Plummer (Grandfather). Edward Plummer did appeal this Court's judgment, and the court of Appeal reversed. On 8/21/20, defendant Kaiser filed a motion for judgment on the pleadings asserting that under CCP 377.60 the Grandfather did not have standing to sue for wrongful death. On 9/22/20, the court granted that motion as to Grandfather stating: "Plaintiff concedes that he does ...

Excerpt: ..., Plaintiff noticed leaks and mold in his unit. (1AC, para 18.) In the spring of 2019, plaintiff noticed bed bugs in his unit and self-treated the unit for beg bugs. (1AC, para 20, 21.) The treatment was unsuccessful. (1AC, para 21.) In March 2019, Plaintiff reported bed bug and mold issues to Defendants. (1AC, para 22.) Defendants took no action. (1AC, para 23.) On 5/14/19, Plaintiff filed a housing inspection request with the City. (1AC, para 2...

Excerpt: ... (c).) A defendant moving for summary judgment must show either that one or more elements of plaintiff's cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc. § 437c, subd. (p)(2).) Once defendant makes this showing, the burden shifts to plaintiff to show the existence of a triable issue of fact regarding the cause of action or defense. (Id.) "There is a triable issue of material fact...

Excerpt: ...lifornia. In Opposition to the Motion, Plaintiffs' evidence is too speculative to meet their burden to show triable issues of material fact regarding whether Mr. Sexton actually worked with pipe covered with Somastic when Defendant was the sole manufacturer. From 1946 to 1953, Defendant was the sole manufacturer and distributor in 11 western states including California of "Somastic" an anti-corrosive coating for steel pipe, which was made from a ...

Excerpt: ...rks for Kane and Associates Inc. The seller was represented by real estate agent Kate McCaffrey. Ms. McCaffrey works for Pacific Union International, Inc. Plaintiffs contend that they sustained compensable damages because neither Defendants nor the seller disclosed to them that a third bedroom was constructed without obtaining the necessary permits. The Court understands that Plaintiffs did not sue the seller because he is dead. On June 7, 2019, ...

Excerpt: ...arris ("Defendants") in advance of the hearing. Defendants have not filed papers responsive to the Motion. Therefore, any defect in service of the Moving papers has not been waived. The Moving papers contain a declaration of plaintiff Smith stating that on 3/11/2020, he served Form Interrogatories and Requests for Production of Documents on Defendant's counsel. However, the moving declarations do not contain as exhibits copies of these written di...

Excerpt: ..., leading to an infestation of cockroaches. Whether those allegations are true cannot be determined in ruling on this demurrer. However, BSR has not adequately alleged how they have suffered any cognizable damage as a result of the Tenants' conduct. For example, has BSR had to incur any extra costs to address the alleged cockroach infestation? Has BSR lost any tenants due to the cockroach infestation? BSR is given leave to amend to clearly allege...

Excerpt: ...es not discuss in detail the grounds for awarding attorneys' fees pursuant to contract as they were previously addressed by the Court of Appeal, though the court notes that Plaintiff raises many of the same objections to the award of attorneys' fees, which the court addresses below. (See: Defendant's Request for Judicial Notice at Exhibit B, Pages 14-15.) Additionally, California Rule of Court Rule 8.278(a)(1) and 8.278(a)(3) entitled Defendant, ...

Excerpt: ...against Defendant. Further, the Court ORDERS the present action STAYED until arbitration proceedings are completed. IF ANY PARTY WISHES TO CONTEST THIS TENTATIVE RULING, NO LATER than 4:00 PM on Tuesday, April 27, 2021, the contesting party must email [email protected] and provide notice to all counsel of the intent to contest the tentative order. Any requested hearing will most likely be conducted using the Blue Jeans Network, passwo...

Excerpt: ...to recover for injury to his land caused by a person not authorized to occupy the premises. (See Smith v. Cap Concrete Inc. (1982) 133 Cal.App.3d 769, 774.) Tinsley alleges he owns the subject property and Glaude occupies it without any right to do so. (See Second Amended Complaint, paragraphs 6, 10-13, and 21.) In addition, these causes of action are not timebarred by any statute of limitations, because Tinsley has alleged a continuing trespass ...

Excerpt: ... The settlement agreement states there will be attorneys' fees of up to $1,966,470 (33%), costs of up to $75,000, a service award of $10,000 for the class representative, and settlement administration costs of up to $36,000, and a net PAGA payment of $45,000. After these expenses of approximately $2,213,470, the class would get $3,767,530. The average payout per class members would be $884. The proposed class notice form and procedure are adequat...

Excerpt: ...e Court concludes that there are sufficient grounds to support Plaintiff's request for leave to file a Second Amended Complaint, but it will not approve the filing of the Second Amended Complaint attached to the motion because it is far too lengthy. The operative First Amended Complaint is itself too lengthy at 31 pages. The proposed Second Amended Complaint is at least 46 pages long. Counsel shall allege only ultimate facts and not evidentiary f...

Excerpt: ...ments as revised. CLASS CONDITIONALLY CERTIFIED When no class has been certified, as is the case here, the Court must determine whether the case meets requirements for certification. (See Anchem Prods., Inc. v. Windsor (1997) 521 U.S. 591, 625-627.) The concerns of manageability and due process for absent class members, which counsel against class certification in a trial context, are eliminated or mitigated in the context of settlement. (Dunk v....

Excerpt: ...ity line of credit with a credit limit of $200,000 from National City Bank. Prior to the default of the Pentons, the right to make claims on the debt was sold to USMR Fund 10 LP. When the Pentons defaulted on their payments, they owed the sum of $182,561.62. The lender's lien interest in the Pentons' property on Machado Court, in Hayward, was extinguished when the senior lienholder caused the property to be sold at a trustee's sale. Plaintiff sub...

Excerpt: ...laint, hereafter "Pl. MPA," p. 5.) Plaintiff filed this personal injury action of June 3, 2020 alleging that she developed mesothelioma as a result of long time use of asbestos contaminated talcum powder but that complaint did not claim that the alleged asbestos exposures resulted in development of her fallopian tube carcinoma. (Rivamonte Decl., Exh. A, First Amended Complaint.) Plaintiff was deposed in this case in August, 2020. Defendants claim...

Excerpt: ...to PAGA cases. Settlements of both class actions and PAGA actions must be found to be "fair, adequate, and reasonable." (See, e.g., Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 244.) When evaluating class action settlements, the Court considers (1) the relative strength of the plaintiffs' case; (2) the risk, expense, complexity, and likely duration of further litigation of this dispute; (3) the risk of maintaining class status throu...

Excerpt: ...is contended that the action has no merit or that there is no defense to the action or proceeding." (CCP § 437c(a)(1).) "A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is ...

Excerpt: ...rty moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 850.) "That is because of the general principle that a party who seeks a court's action in his favor bears the burden of persuasion thereon." (Id.) Further, "the party moving for summary judgment bears an initial burden of prod...

Excerpt: ...nce the May 10, 2017 accident. The scope of the examination was also based on Plaintiff's representation that she would not be making a claim for mental and emotional distress above and beyond that usually associated with her physical injuries. See CCP § 2032.320((c)(1). As indicated by Defendant in great detail, Plaintiff appeared to disclaim the representations made by counsel prior to Dr. Strassburg's examination after he completed the examin...

Excerpt: .... section 2024.050 states as follows: "(a) On motion of any party, the court may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set. This motion shall be accompanied by a meet and confer declaration under Section 2016.040. "(b) In exercising its discretion to grant or deny this motion, the court shall take into ...

Excerpt: ...on of plaintiff Daniel Ridge's ("Plaintiff") First Amended Complaint ("FAC"), many of which DUMF do not appear to be "material" and which Defendant admits are being provided as "background." (See Defendant's Separate Statement at fn. 2.) " 'Material facts' are facts that relate to the cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion and that could make a difference in the disposition of t...

Excerpt: ...hich it may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) DEMURRER TO THE SECOND CAUSE OF ACTION- PRODUCTS LIABILITY Defendants demurrer to the second cause of action for products liability on the grounds that they were not manufacturers of the products at issue and were an "end-user" of the product. Plaintiff generally alleges that ...

Excerpt: ...endant's employee or employees. The Court notes that Roadrunner Transportation did not file an opposition, nor did Plaintiff Rodney Deed object to the production of his employment records. The Court, however, cannot order an out-of-state entity to comply with a California subpoena duces tecum. Defendant has not shown that the Illinois entity is subject to the Court's jurisdiction. The motion is granted as to the August 4, 2020 subpoena duces tecu...

Excerpt: ...es to Cross-Defendant's (1) Form Interrogatories, Set One, Nos. 4.1, 6.5, 6.6, 6.7, 8.7, 8.8, 9.1, 11.1, 11.2, 13.1, 13.2 and 14.1; (2) Cross-Defendant's Special Interrogatories Nos. 2-5 only; and (3) Cross-Defendant's Requests for Production of Documents Nos. 5-16 and 19, no later than Friday, June 4, 2021. The Court notes that Cross-Defendant's Notice of Motion improperly fails to identify the specific written discovery requests to which it see...

Excerpt: ...rty moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 850.) "That is because of the general principle that a party who seeks a court's action in his favor bears the burden of persuasion thereon." (Id.) Further, "the party moving for summary judgment bears an initial burden of prod...

Excerpt: ...y move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages . . . , or that one or m...

Excerpt: ...rrer to Plaintiff's fraud claims with leave to amend. The Court agrees with Defendant's contention that Plaintiff still has not complied with his obligation to plead specific facts supporting each element of the Fourth and Fifth Causes of Action. See Lazar v. Superior Court (1996) 12 Cal.4th 631, 645; and Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157. Plaintiff alleges that Defendant Crofton, the real estate agent for se...

Excerpt: ... 362, 42.) "To this end, the provision 'is broadly construed so as to effectuate the legislative purpose of reimbursing the prevailing defendant for expenses incurred in extracting herself from a baseless lawsuit.'" (Wanland v. Law Offices of Mastagni, Holstedt & Chiurazzi (2006) 141 Cal.App.4th 15, 22, citing Wilkerson v. Sullivan, supra, 99 Cal.App.4th 443, 446.) Section 425.16 is interpreted to allow awards of only such fees as the court deems...

Excerpt: ...ed Third Amended Complaint", nunc pro tunc, will only serve to further confuse the Court's records for this case. Instead, Plaintiffs will be permitted to file a Fourth Amended Complaint, in substantially the same form as the pleading attached as Exhibit 1 to the declaration of Plaintiff's counsel, but changing the caption from "Corrected Third Amended Complaint" to "Fourth Amended Complaint". The Court determines that this motion, and the declar...

Excerpt: ...nd they have advanced to the first trust deed payments to prevent foreclosure. That combined amount is approximately $100,000. The Court determines that an appropriate undertaking is based on (1) the $100,000 figure referenced above, at a legal rate of interest (10%) for a period of six months, with that amount subject to being increased if this case is not resolved within six months, and (2) the $2,700 that Defendants estimate they will incur in...

Excerpt: ...onomic relationship that Plaintiff contends he had with Apple Inc. ("Apple"). But the undisputed facts establish that any connection Plaintiff had with Apple was solely a result of his employment as a sales representative for Neopost. Apple's contract was with Neopost, not Plaintiff, and the only economic benefit Plaintiff achieved as a result of the contract between Apple and Neopost consisted of sales commissions paid by Neopost, not Apple. (Se...

Excerpt: ...dgment or adjudication on each of its causes of action. Defendants oppose. For the reasons discussed below, the City's motion for summary judgment is DENIED. LEGAL STANDARDS The purpose of summary judgment procedures is to allow this Court to "cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute." (Miller v. Fortune Commercial Corporation (2017) 15 Cal.App...

Excerpt: ...history and background of the case given the many demurrers and motions brought before the court. The length of the motion renders the motion unmanageable and the court is required to spend significant time trying to decern the necessary information from the superfluous. "There is nothing novel in the concept that a trial court has the power to exercise a reasonable control over all proceedings connected with the litigation before it. Such power ...

Excerpt: ... for the majority of the material, nonparty witnesses in this case, trial in El Dorado County would be vastly more convenient than trial in Alameda County. WSR identifies 19 witnesses whom it intends to call for trial, each of whom has submitted declarations in support of this motion. Of those 19 witnesses, 10 are South Lake Tahoe police officers or officers with the El Dorado County Sheriff's office who were involved in the response to, and inve...

Excerpt: ...e Court ORDERS that defendants shall have a total of 14 hours to depose plaintiff Edward Richards ("Mr. Richards"), exclusive of Plaintiffs' counsel's direct or re-direct examination, pursuant to CCP § 2025.295(b)(2) and (c). Plaintiffs allege that Mr. Richards has pleural mesothelioma as a result of working for more than thirty years as a pipe fitter with many different asbestos-containing products. Plaintiffs name more than 100 different defen...

Excerpt: ...urden of proving by a preponderance of the evidence any fact necessary to its defense. [Citations] The trial court sits as the trier of fact, weighing all the affidavits, declarations, and other documentary evidence, and any oral testimony the court may receive at its discretion, to reach a final determination." Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 842. While Defendant presents evidence that Plaintiff agreed to Defendan...

Excerpt: ...sue and Monetary Sanctions is DENIED. Based on Defendants Arsil J. Lozano et al's ("Defendants") repeated representations that all documents responsive to Plaintiff's Document Requests in Defendants' possession, custody or control have been produced following a diligent search and reasonable inquiry, the Court ORDERS that Defendants shall be barred from introducing at trial any and all responsive documents not produced to Plaintiff as of the date...

Excerpt: ...ity Company ("CCM CA") (CCM NY and CCM CA are collectively "CCM"); Cachette Venture Partners GP, LLC, Cachette Venture Partners I GP, LP and Cachette Venture Partners I, LP (the "Venture Defendants") (CCM NY, CCM CA and the Venture Defendants are collectively, the "Entity Defendants") (Ms. Cachette and the Entity Defendants are, collectively, the "Defendants"), the Court GRANTS IN PART and DENIES IN PART the Motions as set forth in detail below. ...

Excerpt: ... statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice. (Civ.Code, § 3294, subd. (a).) "Malice," as alleged in Plaintiff's complaint, is defined as conduct "intended by the defendant to cause injury to plaintiff, or despicable conduct that is carried on by the defendant with a willful and conscious disregard for the rights or safety of others." (Civ.Code, § 3294, subd. (c)(1).) Here, Plaintiff ...

Excerpt: ...s driving southbound on Interstate 880 in Hayward and braked when traffic slowed in front of him. Purportedly, the Mercedes-Benz driven by Jeff Wang failed to observe the slowing traffic and did not brake in time, and crashed into the rear of Peter Wong's vehicle. The Complaint alleges that the Mercedes-Benz was equipped with a Forward Collision Avoidance System ("FCAS") that provides forward collision warnings and automatic emergency braking. Pl...

Excerpt: ...ys General Act of 2004 ("PAGA") merely because a trial would be purportedly unmanageable. In enacting the 1953 amendments to the Code of Civil Procedure, it was the Legislature's intent that (subject to narrow exceptions not applicable here) summary judgment is the only mechanism for pretrial disposition of civil actions based on extrinsic evidence outside the pleadings. (Pianka v. State of California (1956) 46 Cal.2d 208, 211-212; accord, Duran ...

Excerpt: ...ing causes of action: (1) Negligence; (2) Elder Abuse/Neglect; and (3) Violation of Nursing Home Resident's Rights. Albertina's daughter Sylvia has asserted a claim for Negligent Infliction of Emotional Distress. Sylvia claims she suffered emotional distress when she saw her mother's injuries. Although the parties dispute whether Plaintiff Albertina Morelos is in fact 94 years old, the Court has no difficulty setting this issue to the side. Plain...

Excerpt: ...-settled: "We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed. [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) "Liberality in permitting amendment is the rule, i...

Excerpt: ...arris ("Defendants") in advance of the hearing. Defendants have not filed papers responsive to the Motion. Therefore, any defect in service of the Moving papers has not been waived. The Moving papers contain a declaration of plaintiff Smith stating that on 3/11/2020, he served Form Interrogatories and Requests for Production of Documents on Defendant's counsel. However, the moving declarations do not contain as exhibits copies of these written di...

Excerpt: ...ntation that her neurological deficit had resolved since the May 10, 2017 accident. The scope of the examination was also based on Plaintiff's representation that she would not be making a claim for mental and emotional distress above and beyond that usually associated with her physical injuries. See CCP § 2032.320((c)(1). As indicated by Defendant in great detail, Plaintiff appeared to disclaim the representations made by counsel prior to Dr. S...

Excerpt: ...Inc. ("Kaiser") is a debtor in a chapter 11 bankruptcy proceeding filed on September 30, 2016 and pending before the United States Bankruptcy Court for the Western District of North Carolina. Upon filing of the bankruptcy case, an automatic stay pursuant to 11 U.S.C. §362 was imposed prohibiting the commencement or pursuit of litigation against Kaiser, and on November 4, 2016, the bankruptcy court entered an order extending the automatic stay pr...

Excerpt: ...the tentative order. If not timely contested, and the tentative ruling will become the final order of the Court. If contested, the hearing will be heard via CourtCall. LEGAL STANDARDS FOR MOTIONS FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION "A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding." (CCP § 437c(a)(1).) "[T]he party mo...

Excerpt: ... his counsel in the amount of $1,480 is GRANTED IN PART. Sanctions in the amount of $615 are awarded on this motion. On July 21, 2020, Shelby served Requests for Production on Lawrence, with responses due August 25, 2020. Lawrence served responses on or around August 28, 2020. Shelby met and conferred with Lawrence, stating that the responses were deficient and nonresponsive, and requested that Lawrence provide further verified responses and reme...

Excerpt: ...for violations of Defendant's workplace violence policy. Plaintiff alleges that the reasons given for the termination were pretextual. The Court found the Moving papers to be inadequate to explain the actual nature of the dispute here, which is adequate grounds to deny the motion. Most importantly, Plaintiff complains of a chain email involving, inter alia, an email between Defendant's employees Jim Call and Alma Balmes, which Plaintiff claims ha...

Excerpt: ...nsel of the intent to contest the tentative order. Any requested hearing will most likely be conducted on a subsequent date, probably April 21, 2020 at 3:00 p.m. using the Blue Jeans Network, password # 5102676935. If a hearing is requested, the Court will advise the parties of the date, time and manner in which the hearing will be conducted in advance of the hearing. If not timely contested, and the tentative ruling will become the final order o...

Excerpt: ...Since Plaintiff's initial deposition, he has requested that trial be continued twice, to occur after additional surgeries and medical treatments. In particular, Plaintiff filed an application to continue trial on September 10, 2019 in which he asserted that an "anterior cervical discectomy and fusion" surgery he had undergone on September 5, 2019 "has undoubtedly changed the status of this case" because he would not be able to "advance his damage...

Excerpt: ...l their attorney filed a meet-and-confer declaration on February 11, 2021. Defendants then filed their demurrer to the Complaint on March 8, 2021. Plaintiff has not filed proofs of service of the summons on the numerous other Defendants identified in her Complaint. Plaintiff's Complaint includes the following four Causes of Action: (1) Violation of Civil Rights (42 U.S.C. § 1983); (2) Violation of Civil Rights (42 U.S.C. § 3601 and the Fourteen...

Excerpt: ... dated 2/23/21. Delays in filing and scanning at the court required plaintiff to re-file the motion for final approval of class action settlement to ensure that the trial court record was complete in the event of an appeal. On 2/24/21, the court entered both an order grating final approval and judgment. APPROVAL OF THE SETTLEMENT The complaint alleges claims on behalf of hourly employees and asserts claims for Labor Code violations. There are app...

Excerpt: ...�11-17.) In a December 2016 shareholder meeting, Kontech proposed that the loan be converted into new shares of Kontech but Plaintiff rejected that proposal. (Id., ¶20.) Plaintiff later discovered that Kontech had cancelled the debt owed on the loan on or about June 28, 2018, without Plaintiff's knowledge or consent. (Id. ¶¶ 33-35.) When plaintiff made demands for repayment of the debt, Kontech refused to make payment and instead provided new ...

Excerpt: ...ake any supplemental filings at least 5 court days before the hearing. LWDA/PAGA RELEASE The settlement agreement does not expressly release the claims of the LWDA that were asserted in the case. The briefing suggests that the parties intend to release the claims of the LWDA for penalties. The parties might want to amend the agreement in this regard. The settlement agreement states that the "released claims" includes a release of claims by the ab...

Excerpt: ... one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages . . . , or that one or more defendants either owed or did not...

Excerpt: ...he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 850.) "That is because of the general principle that a party who seeks a court's action in his favor bears the burden of persuasion thereon." (Id.) Further, "the party moving for summary judgment bears an initial burden of...

Excerpt: ...ssue of material fact and that he is entitled to judgment as a matter of law." (Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 850.) "That is because of the general principle that a party who seeks a court's action in his favor bears the burden of persuasion thereon." (Id.) Further, "the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material...

Excerpt: ...ivil Procedure (C.C.P.) section 425.16 involves two steps. In the first step, the defendant has the burden to demonstrate that the challenged claims against defendant arise "from any act of that person in furtherance of the person's right of petition or free speech ... in connection with a public issue." (C.C.P. § 425.16(b)(1).) Such protected acts are further defined in section 425.16(e). "If the defendant makes the required showing, the burden...

Excerpt: ...ents AHS may have made to the Department of Industrial Relations. Plaintiff's First Amended Complaint, however, continues to allege numerous facts that have little relevance to the causes of action that Plaintiff was given leave to allege, but instead appear to be related to causes of action for which the Court already sustained AHS's prior demurrer without leave to amend for the reasons stated in the Court's January 15, 2021 order. Primary among...

Excerpt: ...evelopers. Defendant Bhandari was also made a manager of SPSD Developers by a vote of the members in accordance with the terms of the operating agreement. Defendant Bhandari's company, Sumitra Properties, LLC, entered into an agreement on June 28, 2017 to sell property located at 3411 Capitol Avenue, in Fremont, to SPSD Developers, LLC. The contracting parties contemplated the commercial development of the property. The sale of the property, howe...

Excerpt: ...e demurrer to the Second Cause of Action for unjust enrichment is SUSTAINED WITH LEAVE TO AMEND. Legal Standard for Demurrer A general demurrer tests the sufficiency of the complaint, i.e., whether it states facts sufficient to constitute a cause of action upon which relief may be based. (Code Civ. Proc., § 430.10, subd. (e); Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 238. ) The complaint must be "liberally con...

Excerpt: ...ill not use judicial notice to convert a demurrer into a de facto motion for summary judgment. (Richtek USA, Inc. v. uPI Semiconductor Corporation (2015) 242 Cal.App.4th 651, 660; Fremont Indem. Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 114.) In July 2013, Jung and Xu agreed to equal ownership in a partnership of joint venture for an online farmers' market. (Cpt para 1, 12.) In September 2013, Jung took time off from the partnership...

Excerpt: ...rs, bill changers and related equipment (the "Collateral") for use in a laundromat, for a term of 114 months and at a cost of $379,065. The Agreement provided Eastern with a security interest in the Collateral and in all of FZ Global's equipment and assets. Defendant Arahimi personally guaranteed FZ's Global's performance under the Agreement, as purported "100%" owner of FZ Global. FZ Global breached the Agreement when it stopped making monthly p...

Excerpt: ...ails. Plaintiffs' motion to compel further production of documents In Response to Request No. 22 is GRANTED. PHH stated in its opposition that the Plaintiffs are trying "to force the search and production of e-mails for the 400 users identified in PHH's comments log over a three-year period between 2017 and 2020 that were not involved in reviewing and denying the September 2018 Loan Modification Agreement. These 400 users do not have any connecti...

Excerpt: ...he Wong Family Trust dated September 11, 2014 and Chicago Title Insurance Company. Defendants and potential cross-complainants seek to allege causes of action against the proposed Cross-Defendants for breach of contract related to a promissory note between Elsa Fucanan, Dictinio Fucanan and MGSACT, Inc., as well as a failure by MGSACT to pay wages and paid time off going back to February through June of 2018, as well as claims for beach of fiduci...

Excerpt: ... ruling on this motion. WT contracted with Stanford to construct a building for the Stanford School of Medicine. (See WT's Separate Statement Fact ("SSF") No. 2 and the evidence cited in support.) WT, in turn, contracted with Plaintiff's employer, United Mechanical Inc. ("UMI") to perform mechanical and plumbing work on the project. (See SSF No. 3 and the evidence cited in support.) The subcontract between WT and UMI provided that UMI shall have ...

Excerpt: ...gs at any time during proceedings, including during trial, as long as the amendment is "in the furtherance of justice, and upon such terms as may be proper." (Code of Civ. Proc. § 576; see also Code of Civ. Proc. § 473(a)(1) [allowing amendments to pleadings after notice to adverse party].) This Court should be "liberal in allowing the amendment of pleadings at any stage of the proceedings where the amendment does not cause prejudice to the rig...

Excerpt: ...review of the Second Amended Complaint, that Plaintiff has adequately pleaded facts that demonstrate that the School District took affirmative actions, such as providing places for the abuse to occur, for covering up the abuse and for allowing the teacher to resign instead of being fired. (Second Amended Complaint at ¶¶ 24, 25, 31, 34, 36, 37, 92, 100, 101, 107, 108, 117, 118 121, 126, 127.) The court finds that these allegations are sufficient...

Excerpt: ... v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 238. ) The complaint must be "liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc. § 452.) The court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-67; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The court m...

Excerpt: ...claration from the general counsel of National Concessions Group, Inc. averring to the fact that Open Vape is a trademark it licenses to third parties, not an independent corporate entity. It therefore argues that it cannot be found liable under Proposition 65. A motion for judgment "performs the same function as a general demurrer[] and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed...

Excerpt: ...4th 1253, 1255.) In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damages statute, Civil Code section 3294. (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) These statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice. (Civ.Code, § 3294, subd. (a).) "Malice" is defined as conduct "intended by...

Excerpt: ...ts and for Unfair Competition on March 4, 2021. On March 18, 2021, the Court granted Plaintiff's unopposed ex parte application for a temporary restraining order and issued an order to show cause re: preliminary injunction. The Court ordered the parties to submit their written briefs and supporting declarations in advance of the hearing on April 13, 2021. The Court has reviewed the parties' written submissions. Plaintiff's request for a prelimina...

Excerpt: ... subject to Labor Code section 2783(d)(1), which applies the test enunciated in S.G. Borello & Sons (1989) 48 Cal.3d 341 for determining employee status. That section was part of an overhaul of wage and hour statutes following the Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903 decision, which applied a less restrictive test to determining employee status. Section 2783 applies the less restrictive Dynamex test to many occupat...

Excerpt: ...ssue of material fact and that he is entitled to judgment as a matter of law." (Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 850.) "That is because of the general principle that a party who seeks a court's action in his favor bears the burden of persuasion thereon." (Id.) Further, "the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material...

Excerpt: ...r that there is no defense to the action or proceeding." (CCP § 437c(a)(1).) "A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to an...

Excerpt: ...).) "A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages . . . , o...

Excerpt: ...not particularly compelling, the Court does not find the delay so unreasonable or the prejudice to AT&T so great as to override the public policy in favor of liberally allowing amendments to the pleadings. Further, the Court finds that Plaintiff's DOE amendment relates back to the filing of the original Complaint on 4/26/2019. (See A.N. v. County of Los Angeles (2009) 171 Cal.App.4th 1058.) IF ANY PARTY WISHES TO CONTEST THIS TENTATIVE RULING, NO...

Excerpt: ...A under PAGA. Defendants argues that the claims of the LWDA under PAGA are barred by a settlement entered in another case. "[T]he preclusive effect of a prior judgment is determined by the court in which it is asserted, not the court that rendered it." (In re Fireside Bank Cases (2010) 187 Cal.App.4th 1120, 1131.) Since 1990, the California Supreme Court has repeatedly stated that claim preclusion is different from issue preclusion and had sugges...

Excerpt: ....) "[A]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action . . . if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence." (CCP § 2017.010.) "[S]tatutes governing discovery 'must be construed liberally in favor of disclosure unless the request is clearly improper by virtue of well-es...

Excerpt: ...iff's claimed injuries and treatment. Plaintiff did not timely respond to discovery and Plaintiff's counsel has subsequently been relieved as counsel on August 31, 2020. Defendants then re-served the discovery on Plaintiff, now acting in pro per. Plaintiff did not respond to the discovery or Defendants' efforts to meet and confer. The defendants then filed a motion to compel written discovery responses which the court granted on December 8, 2020....